Yi Guo Huang v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4796
___________
YI GUO HUANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A072-056-657
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 26, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: August 27, 2009)
___________
OPINION
___________
PER CURIAM
Petitioner Yi Guo Huang, a native and citizen of China, seeks review of a
November 30, 2007 decision by the Board of Immigration Appeals, denying his motion to
reopen removal proceedings. Huang arrived in the United States in January 1992, without

-- 1 of 12 --

To qualify for asylum or withholding of removal, an applicant must establish that he1
has a well-founded fear that he will be persecuted if removed to his home country on
account of race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b), 1231(b)(3). “[A] person who has a well
founded fear that he or she will be forced to [abort a pregnancy or undergo involuntary
sterilization] or [is] subject to persecution for [failure, refusal, or resistance to undergo
such a procedure] shall be deemed to have a well founded fear of persecution on account
of political opinion.” 8 U.S.C. § 1101(a)(42)(B).
1
inspection. On October 9, 1999, the former Immigration and Naturalization Service, now
the Department of Homeland Security, served him with a Notice to Appear, charging that
he was removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted
or paroled. Although Huang failed to attend his hearing, and, as a result, was ordered
removed in absentia, he successfully moved to reopen proceedings. Huang applied for
asylum, withholding of removal, and for protection under the Convention Against
Torture, claiming that he feared persecution if he returns to China because he was in
violation of China’s birth control policies.1
The Immigration Judge, in a December 1, 2003 decision, considered Huang’s
claim that he would be persecuted in China on account of the birth of his two children in
China, in 1989 and 1991, but denied him relief, finding him not credible due to several
material inconsistences between his asylum applications, dated January 12, 1992 and
March 26, 1994, and his hearing testimony. Huang appealed to the Board of Immigration
Appeals, which, on May 26, 2005, affirmed the IJ’s order of removal and adverse

-- 2 of 12 --

2
credibility finding. Huang petitioned for review of the Board’s May 26, 2005 decision in
this Court at C.A. No. 05-3186, but the petition was procedurally terminated by Order of
the Clerk on August 14, 2006.
On May 10, 2007, Huang filed an untimely motion to reopen with the Board, based
on alleged changed conditions in China with respect to enforcement of its birth control
policies. In that motion, Huang indicated that he is from Fujian Province, and he claimed
that his return to China would result in him being placed in “re-education” or “labor
camps,” or forcibly sterilized due to having had two children in violation of China’s “one-
child” policy. In support of his motion to reopen, Huang submitted three brief translated
articles that were not dated. A.R. 19-26. The first article, from World Journal News,
indicated that in Fujian Province local authorities have set up “population schools” to
hold an offending woman’s family members in custody until she agrees to an abortion or
sterilization. A.R. 20. As a result, women who are about to give birth to their second
child plan to hide in relatives’ homes in Hong Kong and then return to China after they
give birth. A.R. 21. The second translated article indicates that these “population
schools” provoke resentment among citizens because they violate China’s “central
policy.” A.R. 24. The article also notes that the local government is discussing whether
to allow people to give birth to a second child. Id. The third translated article chronicles
the heartbreak of a family who had one of its members detained at a “population school.”
A.R. 25.

-- 3 of 12 --

The Matter of S-Y-G- parenthetical stated that, despite claims by the asylum2
respondents of an official policy of sterilization after the birth of two children, the State
Department was not aware of such a policy at either the national or provincial level. The
Matter of J-W-S- parenthetical stated that the evidence of record did not demonstrate that
the Chinese government has a national policy of requiring forced sterilization of a parent
who returns with a second child born outside of China, or that the respondent's province
of origin persecuted those with children born abroad. A.R. 2.
3
Huang also asked the Board to reopen proceedings in light of the country condition
documents discussed in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), and he
contended that he meets the definition of a “particular social group” in that the Chinese
government punishes repatriated Chinese citizens for disloyalty to the Communist Party.
On November 30, 2007, the Board denied Huang’s motion to reopen. The Board
found that the motion was time- and number-barred under 8 U.S.C. § 1229a(c)(7)(A),
(C)(i), and that the evidence Huang submitted was insufficient to support his claim of
changed country conditions, so as to create an exception to the time limit for filing a
motion to reopen, see id. at (c)(7)(C)(ii). The Board noted that the submitted evidence
consisted only of three poorly translated newspaper articles, which did not specifically
reference Huang’s circumstances, and which failed to establish that China has a policy of
forced sterilizations for returnees from the United States. For authority, the Board relied
on Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and Matter of J-W-S-, 24 I. & N.
Dec. 185 (BIA 2007), and supplied parentheticals to explain the relevance of these cases.2
In addition, the Board noted that Huang’s children were born in China on December 3,
1989 and December 16, 1991, and that his wife continues to reside there without being

-- 4 of 12 --

With respect to equitable tolling, the Board properly noted that Huang did not allege3
deficient performance of counsel nor did he assert that he was unaware of the Board’s
prior decision. Huang has not pressed this argument in his brief on appeal, and thus we
consider it waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). Huang
also has not pressed his particular social group argument on appeal, and so it too is
waived. Id. In addition, we are without jurisdiction to review the Board’s decision
declining to exercise its sua sponte authority to reopen removal proceedings.
Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).
4
harmed. The Board concluded by denying Huang’s request for equitable tolling and
declining to exercise its sua sponte authority to reopen proceedings, and the Board
rejected Huang’s particular social group claim on the merits. Huang has timely3
petitioned for review.
We will deny the petition for review. We have jurisdiction under INA § 242(a), 8
U.S.C. § 1252(a). The Board’s jurisdiction arose under 8 C.F.R. § 1003.2(c), which
grants it authority to adjudicate motions regarding matters that it has previously
considered. We review the Board’s denial of a motion to reopen for abuse of discretion.
Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105 (1988). Under this
deferential standard of review, we will not disturb the Board’s decision unless it is
arbitrary, irrational, or contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d
Cir. 2004).
The regulation governing motions to reopen provides that: “A motion to reopen
proceedings shall state the new facts that will be proven at a hearing to be held if the
motion is granted and shall be supported by affidavits or other evidentiary material.... A

-- 5 of 12 --

5
motion to reopen proceedings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing ....” 8 C.F.R. § 1003.2(c)(1). Although a
motion to reopen “must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R.
§ 1003.2(c)(2), this time limitation does not apply if the alien seeks reopening “based on
changed circumstances arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and was not available and could
not have been discovered or presented at the previous hearing.” 8 C.F.R. §
1003.2(c)(3)(ii). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Because Huang’s motion was untimely, being filed two years after the removal
order became final, his motion had to be based on changed country conditions in China
with respect to the government’s enforcement of its birth control policies. We conclude,
however, that the Board did not abuse its discretion in denying his untimely motion to
reopen because Huang did not make the required showing. Huang based his allegation of
changed circumstances arising in China, and his assertion that his evidence was material
to his claim of persecution, on three brief undated articles which indicated that, in Fujian
Province, authorities have set up “population schools,” where a pregnant woman’s family
members are held until the woman agrees to an abortion or sterilization. We are not
persuaded that these articles, even assuming that they post-date Huang’s December 1,

-- 6 of 12 --

The 1999 Changle City Family Planning Handbook, to the extent Huang has relied4
on it in his brief, see Petitioner’s Brief, at vi, plainly was available to him prior to his
December 2003 removal hearing and thus cannot be relied upon to justify reopening
under the “changed circumstances” exception. 8 C.F.R. § 1003.2(c)(1).
6
2003 removal hearing, have any bearing on his present circumstances. Huang has two
children who are now young adults, making the noted “population schools” seemingly
inapplicable to him. The Board’s determination that the articles are not material to
Huang’s claim that conditions have changed in China since his removal hearing, and that
he will be forced into a labor camp or forcibly sterilized if he returns to China, was thus
not arbitrary, irrational, or contrary to the law. See Guo, 386 F.3d at 562. We agree that
Huang failed to make the showing necessary to excuse the untimeliness of his motion to
reopen.
Huang also argues that the documents the Court of Appeals for the Second Circuit
considered in Shao Yung Guo, 463 F.3d 109, be considered in support of his motion to
reopen. These documents, he contends, that is, the 2003 Changle City Family Planning
Administration decision and 2003 Fujian Province Decision, see Petitioner’s Brief, at vi,
demonstrate a policy in China of forcibly sterilizing persons with two or more children.
See Petitioner’s Brief, at 11. In Shao Yung Guo, the Second Circuit explained that the4
2003 Changle City Family Planning Administration decision held that, where either
parent remains a Chinese national with no permanent residence overseas, any child of
such a couple is deemed a Chinese national and shall be treated as such for domestic

-- 7 of 12 --

We take this occasion to note that we find Huang’s reliance throughout his brief on5
Second Circuit law more than a little curious. Although we may find the reasoning of a
sister court persuasive, see Reilly v. City of Atlantic City, 532 F.3d 216, 229 (3d Cir.
2008), we are bound only by the law in this circuit, see Institutional Investors Group v.
Avaya, 564 F.3d 242, 276 n.50 (3d Cir. 2009), and a litigant should acknowledge this
prior to making an argument based on case law from another circuit.
7
administrative purposes. 463 F.3d at 112-13. The decision states that Chinese nationals
having children in violation of China’s family planning policies will be sanctioned
according to family planning rules and regulations enforced at the local level. Id. The
Fujian Province Department of Family Planning Administration affirmed the Changle
City opinion, and emphasized that no exceptions would be made for Chinese citizens
whose reproductive behavior overseas violates local rules. Id.
Huang did not submit these documents with his motion to reopen, relying instead
on the three undated translated newspaper articles, but he asserts that the Board abused its
discretion when it failed to consider them anyway, because they were in the Board’s
possession as a result of prior litigation by other parties in the Second Circuit. See
Petitioner’s Brief, at 12. In a related argument, Huang contends that the Board’s reliance
in his case on Matter of J-W-S- and Matter of S-Y-G- is in violation of Second Circuit
law. See Petitioner’s Brief, at 15-16.5
Matter of S-Y-G-, 24 I. & N. Dec. 247, is the decision issued by the Board
following the Second Circuit’s remand in Shao Yung Guo, 463 F.3d 109, and, in it, the
Board held that the applicant did not meet her burden to show that the proffered evidence

-- 8 of 12 --

8
reflected “changed circumstances” in China. The Board held that the documents
submitted, which included the 2003 Changle City Administrative Opinion and the 2003
Fujian Province Administrative Decision, reflected general birth planning policies in the
applicant’s home province that did not specifically show any likelihood that she or
similarly situated Chinese nationals would be persecuted as a result of the birth of a
second child in the United States. 24 I. & N. Dec. at 254-256. The Board noted that a
2007 Department of State letter established that children born outside of China, and who
are not registered as permanent residents of China, are “not counted” against parents for
purposes of family planning compliance. The State Department was not aware of either a
national or provincial policy requiring that a parent be sterilized after the birth of two
children. Id. at 255-56. With respect to one petitioner whose children were born many
years apart, the Board cited the State Department’s 2005 Profile of Asylum Claims and
Country Conditions for the proposition that provincial law indicates that married couples
may apply to have a second child within certain time frames that are being increasingly
relaxed. Id. at 256.
Similarly, in Matter of J-W-S-, the Board, on remand from the Second Circuit,
addressed a petitioner’s claim that he had a well-founded fear of persecution on account
of having two United States citizen children. 24 I. & N. Dec. at 186-88. The Board held
that the alien failed to establish that he had a well-founded fear of forced sterilization in
China. Id. at 190-192. Citing the State Department’s 2006 Country Report, the Board

-- 9 of 12 --

9
noted that Chinese citizens who violate family planning policies face only economic
penalties, such as job loss and destruction of property. Id. at 190. The Board also noted
that a 2007 State Department report stated that children born outside of China are not
considered permanent residents of China and therefore are not counted against parents for
purposes of family planning compliance. Id. at 190-91. Furthermore, according to
government publications issued in 2005, 2006, and 2007, Fujian Province is lax and
uneven in its family planning policy enforcement, that physical coercion is officially
condemned, that there is no evidence of forced abortions, and any sanctions returning
parents may face would be economic. Id. at 194.
Returning to Huang’s arguments, we find that the Board, in applying Matter of S-
Y-G- to his case, necessarily considered the Shao Yung Guo documents. Cf. Shao v.
Mukasey, 546 F.3d 138, 151 (2d Cir. 2008) (“Although the documents prompting remand
in Shou Yung Guo v. Gonzales, 463 F.3d at 113, see supra at [146-47], had not been part
of the record at [one of the other petitioner’s] removal proceedings, the BIA nevertheless
considered the possibility that this evidence might support an “enforcement” finding
favorable to petitioner”). Furthermore, the Board addressed in its written decision the
issues relevant to the Shao Yung Guo documents to the extent required, given that Huang
did not comply with the regulation requiring him to submit the actual evidence with his
motion to reopen. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall
state the new facts that will be proven at a hearing to be held if the motion is granted and

-- 10 of 12 --

Because Shao v. Mukasey directly addresses Matter of S-Y-G-, we conclude that it is6
unnecessary for us to reach Huang’s arguments concerning Lin v. U.S. Dep’t of Justice,
459 F.3d 255 (2d Cir. 2006). See Petitioner’s Brief, at 15-16. For the same reason, we
decline Huang’s request for a remand to the Board in order for it to consider Gao v.
Mukasey, 508 F.3d 86 (2d Cir. 2007), see Petitioner’s Brief, at 19-20, and his request that
we retain jurisdiction.
10
shall be supported by affidavits or other evidentiary material....”).
It also was not wrong under Second Circuit law for the Board to apply Matter of S-
Y-G-. Shao v. Mukasey, 546 F.3d at 169-172, is the reported decision wherein the
Second Circuit denied the petition for review relating to Matter of S-Y-G-. See Shao, 546
F.3d at 165 (“[w]hile official documents from Fujian Province and Changle City indicate
that Chinese nationals who violate birth limits while abroad will be subject to the same
punishment as citizens whose violations occur in China, the BIA reasonably observed that
these documents made no “refer [ence] to sterilization, much less forced sterilization,” as
a possible punishment”). The Second Circuit in Shao, 546 F.3d at 163-64 & n.26, 172,
also discussed with approval the Board’s decision in Matter of J-W-S-, and, for that
matter, it discussed with approval the Board’s decision in Matter of J-H-S-, 24 I. & N.
Dec. 196, 203 (BIA 2007), wherein the Board addressed the sterilization issue with
respect to children born in China. Matter of J-H-S- held that the evidence showed that
physical coercion to achieve compliance with family planning goals is uncommon and
unsanctioned by China’s national laws, and overall policy is more heavily reliant on
incentives and economically-based penalties, see Shao, 546 F.3d at 158-161, 165.6

-- 11 of 12 --

11
In sum, the record fully supports the Board’s conclusion that Huang did not
demonstrate changed circumstances in China sufficient to excuse the untimeliness of his
motion and justify reopening of his removal proceedings. We find that the Board’s
decision was consistent with the standards we set forth in Zheng v. Att’y Gen. of U.S.,
549 F.3d 260 (3d Cir. 2008), in that the Board adequately considered the materials Huang
submitted with his motion to reopen.
For the foregoing reasons, we will deny the petition for review.

-- 12 of 12 --